Possession charge effectively covered “mere presence” issue; Prosecutor asking why officers would risk careers was not improper vouching.

U.S. v. Weatherly, No. 07-1019, 2008 WL 850005, (3d Cir., Mar.31, 2008)(published May 13, 2008). Weatherly was charged with being a felon in possession of a firearm. It was alleged that the gun was found on Weatherly as he was being arrested on another matter. At trial, Weatherly contested the issue of possession, arguing that the officers found the firearm in the alley nearby, assumed it was his, and lied about where it was actually found. Counsel pointed out discrepancies in the officers’testimony and offered evidence that it was common to find abandoned guns in the alley where he was arrested. He also offered witnesses who testified that Weatherly was not carrying a gun while in their presence earlier that day.

In closing argument, Weatherly conceded that he was only contesting the issue of whether he “possessed” the gun, and argued that his guilt hinged upon the credibility of the officers. In rebuttal, the government argued that Weatherly failed to show any reasons why the officers would lie and asked “Why would Officer Ryel and Detective Medina risk their 32-34 years of experience on the police force over this case?”

Weatherly submitted a proposed “mere presence” jury instruction to explain the legal justification for his defense theory: “Mere presence in the area of any contraband, including a firearm, or awareness of its location is not sufficient to establish possession.” The judge refused the instruction, finding it was not relevant. The court gave, in part, the following possession instruction:

To possess means to have something within your control. This does not necessarily mean that you must hold it physically, that is to have actual possession of it. As long as the firearm is within your control, you would possess it. Knowingly is defined as knowledge, voluntarily and intentionally, and not because of mistake or accident or other innocent reason. . . .Now, to
possess means to have it within the person's control. That does not mean, and I said earlier, it doesn't have to be held physically. It doesn't even have to be on the person. But in this case, the proofs and the allegations are that the defendant had it on his person [and] had actual possession of it. In other words, you can be in possession of a weapon in your car and you can be 25-50
feet from the car. But that's not this case. That's all I'm saying. This case, the allegation is that the defendant had possession of it, actual possession on his person.

The jury returned a guilty verdict. On appeal, Weatherly argued that the possession instruction failed to instruct that the defendant had to “intend to exercise dominion and control” over the firearm and did not cover his requested “mere presence” instruction. He argued that the jury could have found him guilty even if they believed his defense, because the instruction defined possession to include the situation where the firearm was simply near him or susceptible to his control.

The Circuit found that the district court did not err in refusing the mere presence instruction because the possession instruction substantially covered the issue; the jury could not find that Weatherly knowingly possessed the firearm under the actual jury instructions due simply to his mere presence in the area of any contraband because it required knowledge and control. Moreover, even if the actual jury instructions did not substantially cover Weatherly's proposed mere presence instruction, the court did not err because omission of the “mere presence” instruction did not prejudice Weatherly. At trial, the Government's theory was that Weatherly actually possessed the firearm and the court's jury instructions made it clear that this case was about actual possession, not constructive possession, making the mere presence instruction irrelevant.

Weatherly also argued that the prosecutor improperly vouched for the credibility of the government witnesses when he asked why the officers would risk their careers on his case. The Circuit held that although in some cases such a statement would be improper vouching, in this case they were proper because they were based on evidence in the record (the government asked one of the officers what would be taken into consideration by his superiors in making promotion decisions, part of his answer included disciplinary actions), and the statement was a reasonable response to allegations of perjury by Weatherly's attorney, who argued at closing that the police officers found a gun near the defendant, conspired with each other to lie about the incident, and then proceeded to perjure themselves in court.

"Related" within the meaning of U.S.S.G. §4A1.2(a)(2) (pre-Nov. 1, 2007) requires either formal consolidation order or close factual relationship

In United States v. Wood, No. 06-3812 (3d Cir. May 1, 2008), the Third Circuit considered whether the defendant's prior burglary and conspiracy convictions were "related" within the meaning of U.S.S.G. §4A1.2(a)(2) (pre-Nov. 1 2007 version) where the defendant was sentenced for those offenses on the same day before the same judge. Adopting the approach utilized by other circuits and the district court in this case, the Third Circuit held that the imposition of sentences for multiple offenses at the same time by the same judge does not render the cases "consolidated for sentencing" and, therefore, "related" within the meaning of §4A1.2(a)(2), in the absence of either a formal consolidation order or a close factual relationship between the offenses. Here, the three prior convictions were factually distinct, involved different crimes and separate victims, and occurred on separate dates. The offenses were charged under different docket numbers, no formal consolidation order was ever entered, and the county judge imposed consecutive sentences. Accordingly, the district court did not err by concluding that the defendant's prior offenses were not related.

The Third Circuit also considered whether the amended version of §4A1.2(a)(2) (Nov. 1, 2007) should be applied retroactively. The version of §4A1.2(a)(2) in effect at the time of the defendant's sentencing distinguished between related and unrelated cases, and defined relatedness with respect to similarity in either time, facts, or judicial economy. In contrast, the amended version of §4A1.2(a)(2) contemplates that prior sentences are to be considered as one if the underlying offenses either share the same charging instrument or were sentenced together on the same day. According to the Third Circuit, the amended version, which does not turn on relatedness, but rather on factors that would be obvious from the record, effected a substantive change to the Guidelines which could not be applied retroactively to the defendant's sentence. Accordingly, the Third Circuit affirmed the defendant's sentence.

Circuit Judge Rendell filed a dissenting opinion indicating that she would have found the defendant's prior convictions related under old version of §4A1.2(a)(2).

3d Circuit affirms life sentence and holds that § 848(b) sets forth sentencing factors, not a separate crime.

In United States v. Tidwell, No. 02-3139 (3d Cir. Mar. 31, 2008), the Third Circuit held that Congress intended 21 U.S.C. § 848(b) as a sentencing enhancement, not as a separate crime, and thus the life sentence imposed on Tidwell under § 848(b) was constitutional where the factual basis was not charged in the indictment. Tidwell had pleaded guilty to engaging in a criminal enterprise in violation of § 848 ("Continuing criminal enterprise"), which carries a penalty of 20 years to life imprisonment. The indictment, however, did not specifically charge him with violating § 848(b) ("Life imprisonment for engaging in continuing criminal enterprise"), which carries a mandatory life sentence for one who is the leader of the enterprise and either the offense involved 300 times the quantity of drugs described in § 841(b)(1)(B) or the enterprise received more than $10 million in gross receipts over a 12-month period.

The district court sentenced him to life imprisonment under § 848(b), reasoning that § 848(b) sets forth sentencing factors that govern sentences imposed for violating the substantive offense, rather than elements of a separate crime. The Third Circuit agreed. Examining the structure, format, and text of the statute, and four Supreme Court decisions (Almendarez-Torres, Jones, Castillo, and Harris), as well as the legislative history of § 848(b), the Court concluded that Congress intended to define the crime of continuing criminal enterprise in § 848(c), that it set out the applicable penalties for that crime in subsection (a), and that it intended to mandate an enhancement when a defendant commits the offense in the manner set forth in subsection (b). Thus, the Third Circuit affirmed Tidwell’s life sentence as constitutionally imposed, where the factual basis was not charged in the indictment nor proven beyond a reasonable doubt. In addition, the Third Circuit rejected Tidwell’s claim that his plea violated due process, reasoning that he was informed that, absent a government motion seeking a sentencing reduction, his guilty plea subjected him to a mandatory life sentence.